170 legal victories empower First Nations in fight over resource development

170 legal victories empower First Nations in fight over resource development

The wakeup call: Corporate interests need to accept what the courts already have — that First Nations now hold the balance of power in deciding the fate of Canada’s resource projects because they have rights that others don’t

Canada is orchestrating a big push to accelerate development of its natural resources, but behind the hype there is a shifting and tense legal landscape. First Nations are on a big winning streak in the courts that has empowered them to have a say on projects in big parts of the country.

The tension is pushing corporations to spend huge dollars to keep the peace and move projects along in areas First Nations claim as their traditional lands.

But the approach is piecemeal and there have been few consistently successful strategies. Tension, frustration and confrontation abound. Lawyers, consultants and vested interests fuel and feed off the tension, making it hard to come up with solutions.

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Many projects worth billions of dollars have been delayed or sunk altogether.

They include scores of mining, forestry and pipeline projects such as the now-shelved Mackenzie Valley gas pipeline in the Northwest Territories. The Northern Gateway pipeline could be next unless accommodation is found with opposed First Nations in the B.C. interior and on the coast.

Bill Gallagher, a former federal government regulator, oil and gas lawyer, treaty negotiator, and author of a new book, Resource Rulers, Fortune And Folly on Canada’s Road to Resources, argues there is a better way.

“The current situation in terms of access to resources, with the overarching tensions, has become unsustainable,” Mr. Gallagher said in an interview. “That is the key to the whole thing. Recognizing that Plan A has not worked; let’s put a Plan B together.”

The good news: Canadian First Nations are not opposed to development.

The wakeup call: Corporate interests need to accept what the courts already have — that First Nations now hold the balance of power in deciding the fate of Canada’s resource projects because they have rights that others don’t.

It’s a power Mr. Gallagher says is backed up by 170 legal victories — the biggest winning streak in Canadian legal history — that give First Nations a say in how resources are accessed and developed in every region of the country.

The wins are underpinned by the Canadian constitution. When it was repatriated in 1981 by the Liberal government of Pierre Trudeau, First Nations won the inclusion of aboriginal and treaty rights, as well as blanket protection in the Charter of Rights and Freedoms.

These key measures today comprise the fundamental law of Canada and form the underpinnings of the ensuing native legal winning streak, Mr. Gallagher writes in his book.

The new landscape means the “minimalist approach” used by many resource companies in dealing with Canada’s aboriginals is inadequate.

The new approach will have to involve revenue sharing, building trust and treating First Nations as full partners, perhaps even invite them to be co-applicants before regulatory boards — that’s what it will take to win backing for pipelines in the future, including Northern Gateway, he said.

“As long as [industry] keeps pushing [projects] in the regulatory process, and lawyers are doing all the speaking, that element of trust never gels,” he said. “The process is seen as stacked in favour of industry, and you have these constant challenges.”

Locking up First Nations support goes a long way to tempering environmental movement opposition, Mr. Gallagher said, because the green groups don’t have the same legal standing without aboriginal co-operation.

It’s a conclusion Mr. Gallagher came to by following the evidence.

A negotiator in many of Canada’s resource projects, including the Voisey’s Bay nickel project in Newfoundland, Mr. Gallagher has kept score of the changing legal landscape in many ways — including by way of a map of Canada he keeps in his Waterloo, Ont., home.

It’s sprinkled with coloured pins: red dots where First Nations won a major court case, blue dots where a project crashed or was reconstructed in response to First Nations’ opposition, green dots for wins by the environmental movement that led to huge environmental reserves, yellow dots for projects that get things right the first time.

Indeed, while Canadians have heard plenty about “negative power” or aboriginal opposition to resource projects, there are also many First Nations that are open for business, such as the Haisla Nation in British Columbia and the Inuvialut in the Northwest Territories.

Mr. Gallagher points to the Suncor Energy Inc. and Syncrude Canada Ltd. oil sands projects for doing it right and that today employ thousands of aboriginals and support aboriginal enterprises.

Mr. Gallagher said he is glad there are high-profile national debates over the desirability of oil sands growth and of oil sands export pipelines because they highlight the rise of First Nations and could lead to new approaches.

“The oil sands are essentially encircled with important native legal wins, and pipeline routes extending out from the oil sands are running directly into powerful legal precedents,” he said.

“I think these projects have underestimated the real landscape,” he says. “They may have got the geology right, the geography right and even the marine patterns to some extent right, but they have missed the native empowerment landscape.”

But Mr. Gallagher warns proponents of projects usually get only one chance for a positive relationship — at the beginning — before the various sides are so “lawyered-up” that the conflict feeds on itself.

There are suggestions that won’t be easily embraced by resource developers, whose tendency is to balk at requests for revenue sharing or for sharing power with aboriginals, with whom they have little in common. As well, there are hundreds of First Nations and they have different views of their own future, making it hard to find solutions that work for all.

But this is an area that badly needs new thinking, and Mr. Gallagher is offering ideas, supported by the Assembly of First Nations, that Canadian resource developers can no longer dismiss, because the alternative is more of the same — projects going up in flames, confrontation and billions in real and missed opportunity costs.

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